The Supreme Court takes pot shots at each other over wetlands

In one of the most anxiously
awaited decisions this session, the Supreme Court recently struck a
blow against environmental protection by ruling for a couple of
commercial developers.

The issue in play in Rapanos v.
United States: Can federal protection be extended to small
tributaries and wetlands near, but not directly abutting, navigable
waters? A lower court said yes, but the Supreme Court referees, in
a 4-1-4 split decision, disagreed and vacated the judgments against
the developers.

The lead opinion by Justice Scalia,
joined by Justices Roberts, Thomas and Alito, would clear the way
for development of most wetlands and streams. According to the
court's most conservative members, the regulation of non-perennial
streams, wet meadows and arroyos under the
federal Clean Water Act stretches the law's coverage "beyond
parody."

But as the dissent by Justices Stevens, Souter,
Ginsburg and Breyer noted, as the wetlands and their inhabitants
go, so goes the entire watershed. The Scalia opinion, they argued,
is nothing but blatant "antagonism to environmentalism."

Justice Kennedy concurred in the court's judgment but not in its
reasoning. He opined that, to come within federal protection,
regulators must make a scientific determination that the wetland in
question has a significant hydrological "nexus" to a navigable
water body.

Justice Scalia cavalierly dismissed the
dissenters' concerns, saving his most heated rhetoric for Justice
Kennedy. In a shot that would draw a "red card" in soccer, he
accused Kennedy of misreading the court's prior decisions, hiding
behind the statutory purpose of protecting water quality rather
than adhering to the statute's plain language, and then
bootstrapping his conclusion by claiming that anything that might
affect waters of the United States bears a "significant nexus" to
those waters and thus is those waters.

In a parting shot,
Scalia disparaged Kennedy's logic as unsubstantiated "turtles all
the way down." The turtle metaphor refers to a fictional exchange
between an astronomer and a little old lady in a lecture hall. The
astronomer described how the earth orbits around the sun.

The lady remarked: "That's rubbish. The world is a flat plate
supported on the back of a giant tortoise." When the astronomer,
humoring her, asked what the tortoise was standing on, the lady
replied, "Why, it's turtles all the way down."

The irony
of Scalia's metaphor is palpable. According to Conservation
International, 40 percent to 60 percent of all turtles in the world
face extinction. United States' populations reflect this trend:
Around half of our turtle species are imperiled. Freshwater fishes
are in equally bad shape, and the primary culprit is habitat loss.
In the last 200 years, the United States has lost over half of its
original wetlands, the equivalent of 60 acres of wetlands every
hour.

If Scalia had convinced Justice Kennedy to join in
his opinion, many — in fact, most — wetlands and
streams would be excluded from federal protection. Many of the
remaining wetlands are not adjacent to navigable waters, and the
National Hydrology Dataset shows that nearly 60 percent of the
total stream miles in the U.S. are non-perennial.

In arid
Western states like New Mexico and Arizona, the figure is much
higher: 90 percent of assessed streams flow only in wet weather.

Will states step up to the plate? It seems unlikely.
Although Justice Scalia expressed his concern for preserving
"primary state responsibility for ordinary land-use decisions," 33
states and the District of Columbia filed "friend of the court"
briefs on behalf of the United States, seeking to maintain broad
federal jurisdiction over wetlands and tributaries. In the states'
view, wetlands preservation — a political "hot potato" if
ever there was one — is best accomplished by the feds.

But confusion reigns. As a result of the split, Justice
Kennedy's concurring opinion has become the law of the land. Yes,
it could have been worse for conservation interests. But the
Rapanos decision places the burden of proving a "significant nexus"
squarely on the shoulders of the U.S. Corps of Engineers, which
itself is experiencing a crisis of legitimacy in the wake of
Hurricane Katrina. It isn't unreasonable to question whether this
beleaguered agency, subject to an array of contradictory statutory
mandates, from wetlands protection to dredging navigational
channels and constructing flood control levees, is up to the task
of going toe-to-toe with well-heeled developers in this
case-by-case fashion.

At least the U.S. soccer team could
claim a tie, which can keep hope alive in the World Cup. Not so for
the turtles, who swing in the balance while legal skirmishes
continue.

Sandra Zellmer is a contributor to
Writers on the Range, a service of High Country
News (hcn.org). She is professor and Havelone Research
Chair at the University of Nebraska College of Law in Lincoln,
Nebraska, and a member scholar of the Center for Progressive
Reform.